August 22, 2008

Obama's law review case comment — about the rights of a fetus againt its mother.

Politico has unearthed Barack Obama's lost law review article — a short, unsigned piece known a "case comment."
The six-page summary, tucked into the third volume of the year's Harvard Law Review, considers the charged, if peripheral, question of whether fetuses should be able to file lawsuits against their mothers. Obama's answer, like most courts': No. He wrote approvingly of an Illinois Supreme Court ruling that the unborn cannot sue their mothers for negligence, and he suggested that allowing fetuses to sue would violate the mother's rights and could, perversely, cause her to take more risks with her pregnancy.

The subject matter took Obama to the treacherous political landscape of reproductive rights, and - unlike many student authors - he dived eagerly into the policy implications of the court decision. His article acknowledged a public interest in the health of the fetus, but also seemed to demonstrate his continuing commitment to abortion rights, and suggested that the government may have more important concerns than "ensuring that any particular fetus is born."

And he concluded the article with a flourish: "Expanded access to prenatal education and heath care facilities will far more likely serve the very real state interest in preventing increasing numbers of children from being born in to lives of pain and despair."
I looked up the article and can assure you that the last line has the word "into" and not "in to," so hold your mockery on that point. And the case he's writing about, Stallman v. Youngquist, did not involve a fetus that survived abortion. A child was born with injuries caused in the womb when the mother had a car accident. But the issue of abortion is in the background and the subject comes up in the penultimate paragraph, which reads:
Most proponents and critics of the creation of a fetus' right to sue its mother agree that the approach taken in the Supreme Court's abortion decisions -- balancing a woman's right to privacy and bodily autonomy against the state's interest in protecting the fetus -- provides a starting point for analyzing the constitutionality of fetal-maternal tort suits. Commentators also agree that courts should weigh these interests differently in cases where a woman has decided to carry her pregnancy to term, and that the issue of fetal-maternal tort suits therefore demands a separate doctrinal framework. For example, fetal-maternal tort suits might entail far more intrusive scrutiny of a woman's behavior than the scrutiny involved in the discrete regulation of the abortion decision. On the other hand, the state may also have a more compelling interest in ensuring that fetuses carried to term do not suffer from debilitating injuries than it does in ensuring that any particular fetus is born.
Be very careful here. That last line, that "flourish," as Politico has it, about "preventing increasing numbers of children from being born into lives of pain and despair," is not an expression of enthusiasm for aborting children who, if born, would have an unfortunate life. It refers to encouraging pregnant women to take care so that their children are not injured in utero and will be born into a happier life. Note too, that the lawsuit is really about the injured child getting access to the mother's insurers.

What is odd is that up until now, we'd been led to think that Obama, despite his stature as president of the Harvard Law Review, had never written anything. Once Politico tracked down the article, the campaign acknowledged that Obama had written it. But why the urge to suppress it? Obama took knocks for his supposed failure to produce any legal scholarship. It seems that abortion is just not something he wants to have to talk about.

ADDED: Eugene Volokh makes a nice point about the legal issue:
Pretending for a moment that we actually care about the article as an article, my one suggestion would have been to pay a bit more attention to the risk of collusive lawsuits: Since the fetus-mother lawsuit would usually make sense only if the mother has liability insurance -- as many people do, just under their auto insurance or homeowner's insurance policies -- there would be very great temptation in an injury case for the mother to overstate her possible negligence, so the fetus gets more money from the insurance company. I imagine many a person, even one who is ordinarily quite ethical, might find this temptation hard to resist in a case such as this one, when it's a matter of helping one's family (especially when the family will be facing huge medical or supplemental care bills as a result of the injury) at the expense of a faceless insurance company. The article mentions the insurance factor as a reason to worry about generally higher premiums for pregnant women, but not the collusive lawsuit concern.
Obama refrained from saying something negative about women and from highlighting the interests of the insurance companies.

34 comments:

Roger J. said...

I understand we are in the preconvention August doldrums here, but wow. I take your points about his unwillingness to release anything (most important his medical records and not a doc's note). However, I for one would hate to be judged on my college writings now some 40 years ago. I think this is pretty thin gruel.

Richard Fagin said...

Sen. Obama was entirely correct, whether or not you liked his background reasoning, to conclude that fetal tort suits against mothers are an extraordinarily bad idea. Having such causes of action would open the door to all sorts of abusive litigation, including in cases of birth defects, which the ever-creative tort bar would try to tie to the mothers' conduct during pregnancy as proximate cause of injury.

I don't really agree with Obama's conclusions about such tort suits affecting abortion rights, because in fetal-mother suits related to abortions there aren't typically the deep pockets that drive mass tort litigation.

There may be enough incentive in birth defect cases to shake down homeowners' insurance carriers or wealthy estates. Reason enough to keep this kind of suit off the table.

Simon said...

Ann said...
"What is odd is that up until now, we'd been led to think that Obama ... had never written anything. Once Politico tracked down the article, the campaign acknowledged that Obama had written it. But why the urge to suppress it? Obama took knocks for his supposed failure to produce any legal scholarship. It seems that abortion is just not something he wants to have to talk about."

Another possible explanation might be that there's another unsigned piece out there, one that could do more damage. Is it normal for the editor to write only one thing for the journal? I don't know, perhaps JAC does, but by grabbing this one with both hands, the campaign might hope to discourage people from looking for other stuff.

Simon said...

Oh, and: "It seems that abortion is just not something he wants to have to talk about." I would think that as a general rule, the less a candidate wants to talk about a material issue, the more we - and the media - should want to press them on it.

TMink said...

Empty.

Suit.

Trey

Ruth Anne Adams said...
This comment has been removed by the author.
Pogo said...

"Be very careful here. That last line, ...is not an expression of enthusiasm for aborting children who, if born, would have an unfortunate life. It refers to encouraging pregnant women to take care so that their children are not injured in utero and will be born into a happier life."
I don't think it refers to injury at all.

The sentence reads: "Expanded access to prenatal education and heath care facilities will far more likely serve the very real state interest in preventing increasing numbers of children from being born in to lives of pain and despair."

You seem to read an impled addendum ...because they lack a severe injury. I think his writing is most unclear. Instead, it might also refer to the standard liberal assumption that planned pregnancies are more likely to become happy childhoods.

But is that assumption even true?
And even if true, so what? Should the state prevent people from being born into lives of pain and despair?
Is an unhappy life not worth living? Whose decision should that be?
Mine?
The government's?


"...the lawsuit is really about the injured child getting access to the mother's insurers.
Redundant, no?
I keed, I keed.

save_the_rustbelt said...

I hope no one ever finds the stuff I wrote in college - ugh.

1jpb said...

Ruth,

Is it telling that you, and like minded folks e.g. Pogo, invent false narratives because you can't escape from you preconceived notions?

You're the right wing version of the lefties who go around saying that McCain must have been an incompetent pilot because he lost five aircraft. Even his failure to stick the landing during training in 58, and his later flying low and hitting some power lines have excuses. And the other three incidents couldn't be helped; getting shot down happens, accidents while not even in the air happen, a flameout while flying to see the Navy-Army game can happen.

At least everyone can agree that we're grateful McCain's experience with Navy aircraft is not typical for every pilot. If this was typical the Navy would be a more dangerous place to work, and they would need a much larger budget.

David Walser said...

Ann,

and others who are familiar with the workings of law reviews, what is the usual output of members of the law review? How unusual is it for someone who has never written an article to be named as editor?

This morning I imagined a McCain ad that graphed the number of articles written by the editors of the Harvard Law Review over the last 30 years. My imagined ad also showed a similar graph of the number of articles written by the faculty at the University of Chicago's law school. Lastly, there would be a graph showing the number of "major" bills introduced by US Senators in their first 4 years. I wonder where Obama would fall on these spectrums. The tag line: "Obama, he's held some prestigious positions, but he hasn't done anything with the positions he's held." Or some such.

Pogo said...

I hope no one ever finds the stuff I wrote in college.
Lessee.
Lab reports.
Calculus exercises.
Tests, tests, tests.
Western Civ term paper.
School paper comic strips.
Scultures (nudes!).
Drawings (nudes!).

Me, I got nothin' to hide.

Though my tadpoles did die in that fateful thyroid experiment, they were murdered it seems, by a fellow classmate. He killed all 30 students' tadpoles, thinking it would make us all flunk, because only his lived (survival being the bare minimum for a passing score). Why he thought no-one might guess what had happened is beyond me.

He went on to become a surgeon.

Pogo said...

1jpb

I don't get your point.
What false narratives?

Chris said...

"...the fetus' right to sue its mother..."

Violates the very first rule of Strunk & White (though that puts him on the side of Justice Thomas). And the fetus is an it.

Synova said...

It *is* thin gruel.

But what else is there?

A voting record? It seems not. We can't investigate what doesn't exist.

Can we examine his performance as a US Senator?

Has he even shown up to work yet?

vbspurs said...

I hope no one ever finds the stuff I wrote in college - ugh.

Just don't ever run for the highest office in the land, Then your REL 101 paper, when you called Jesus "Jesse the Man", will be okay.

(As for an opinion, what Ruth Anne said -- and she said it beautifully)

Cheers,
Victoria

Synova said...

I hate to say it but Hillary is far more qualified. She's actually functioned as a Senator for *real*, like her or not.

vbspurs said...

I hate to say it but Hillary is far more qualified.

Why do you hate to say it?

I dislike Hillary immensely, but you get the sense that at Wellesley, at the Rose Law Office, and even at the Senate, she got ahead MORE for her brains and cunning than for "just" being a beneficiary of affirmative action.

Not so with dear Senator Obama.

Ruth Anne Adams said...
This comment has been removed by the author.
Richard Fagin said...

Nice to see Prof. Volokh is just as on guard about the tort bar!

Simon said...

Chris said...
"'...the fetus' right to sue its mother' [v]iolates the very first rule of Strunk & White (though that puts him on the side of Justice Thomas)."

It puts him on the same side as Justice Thomas, to some extent Justice Scalia, and myself, too. I depart from Elements of Style on this point - the possessive singular of a noun should be formed with "'s" unless the word ends in s, in which case the s that would follow the apostrophe is ugly and redundant (e.g. "Congress's" vs. "Congress'").

Trochilus said...

From the Politico piece:

"When Politico reporters working on a story about Obama's law review presidency earlier this year asked if he had written for the review, a spokesman responded accurately - but narrowly - that 'as the president of the Law Review, Obama didn't write articles, he edited and reviewed them.'"

In the first place, that does not really seem like "accurately -- but narrowly" -- that seems a bit more like "deceptively."

As was reported in the New York Times, back in January of 2007:

"Along with 40-odd classmates, he won a precious spot on the law review at the end of his first year through grades and a writing competition."

The obvious first question is, did he submit the case note on that particular case as his submission in the writing competition, or did he submit something else?

If he submitted something else for the competition, will he agree to allow the Harvard Law Review to release a copy of what he did submit?

Secondly, everyone who has ever been close to any such editorial process knows, a case note as published in the Harvard Law Review, (or any other Law Review for that matter), differs substantially from the original submission. Even if his submission for the writing competition was a note on that case, what was ultimately printed was likely quite different from his competition submission.

The editorial process on any law review -- whether for case notes, comments or for full blown articles -- is very rigorous, and case notes especially, frequently end up reflecting at least as much the input of the Notes Editor assigned to that note, as the initial author.

Therefore, the submission, as he made it for the competition, would be a far better indicator of the views of Barack Obama, than the Note as was ultimately printed. And, he was older than many students at the time -- he was 27, according to the Times article. So it is more important in terms of his maturing views.

Hence, will Barack Obama agree to the release of the case note, as he submitted it, even if it was on the same case? No doubt the Harvard Law Review kept at least a copy of the original submission.

And also of some interest, for the writing competition, did he select the case to write on -- perhaps from a proffered list - or was it assigned to him when he indicated a desire to compete for a slot? That can differ from school to school.

1jpb said...

Ruth,

So, without explanation you're standing by your narrative defining BHO's time in the IL Senate. And, your Law Review thoughts are borrowed from someone who is a professional conservative.

Pogo,

You link BHO's desire that expecting mothers would have have access to prenatal education and health care facilities to the issue of a pregnancies being planned or not planned. It was only your bias that led you to this great leap.

blake said...

professional conservative?

You can get paid for it? Damn! I'm willing to adopt whatever viewpoint makes the most money (for me, personally).

The Lib/Con thing seems kind of booked, though. Any room for a wacky libertarian? Hell, Libertarian?

blake said...

I wrote some great stuff in college.

When I get around to it, I'll put it on my blog.

OK, it's mostly music. Nonetheless.

Revenant said...

You link BHO's desire that expecting mothers would have have access to prenatal education and health care facilities to the issue of a pregnancies being planned or not planned.

"Prenatal education and health care facilities" includes abortion clinics and information on their availability. That's what Democrats scream whenever Republicans suggest cutting funding to clinics that provide abortions or information on abortions. We cannot definitely conclude that Obama was talking about abortion when he referred to "preventing increasing numbers of children from being born in to lives of pain and despair", but we certainly can't rule it out. After all, an aborted fetus certainly doesn't become an unhappy child later in life, and abortion activists regularly cite an increase in unwanted poor and/or defective children as one result of abortion restrictions.

In summary, your claim that Pogo's "narrative" is false is, itself, false. The various narratives suggested are all of uncertain value.

1jpb said...

Revenent,

I can see where you're coming from.

But, I don't believe that we need to fear that providing pregnant women with prenatal care and health care facilities will result in these women being pressured into abortions against their will. That sort of claim would need to be supported with very solid data.

I sure hope that there aren't any pro-life folks who think like you do such that they are trying to stop abortions by opposing prenatal care and health care facilities for pregnant women. The pro-life folks are free to go about with their efforts, but they are should be restrained from actions that can hurt or kill babies and mothers, as could happen for pregnant women without prenatal care and health care facilities.

The Exalted said...

writing competitions typically involve writing a short ~5-15 page memo on a closed set of facts that you are given. not exactly interesting stuff.

ann - you really think his case comments are worthwhile fodder for a presidential campaign? really?

blake said...

Exalted--

What else do we have?

Revenant said...

But, I don't believe that we need to fear that providing pregnant women with prenatal care and health care facilities will result in these women being pressured into abortions against their will.

From a pro-life perspective, the only difference between (a) a woman who has an abortion "against her will" and (b) a woman who freely chooses an abortion because she has been made aware of the option and it is available to her is whether (a) the doctor or (b) the woman is ultimately responsible for murdering an innocent baby. From the pro-choice perspective of preventing unwanted, defective, or unsupportable children from being born, the only difference is whether the doctor acted (a) unethically or (b) ethically. The desired end result is achieved either way.

This is all moot, though. Obama has a strictly pro-choice/pro-abortion record. Arguing over whether he supported abortion while still in college is a bit silly when nobody with common sense thinks he opposes it today.

I sure hope that there aren't any pro-life folks who think like you do

That would be very strange indeed, considering that I support legal abortion.

such that they are trying to stop abortions by opposing prenatal care and health care facilities for pregnant women.

The difference is that pro-choice folks (and medical professionals) consider abortion clinics to be "health care"; advice on abortions falls under "prenatal care". Pro-lifers consider those to be about as health-care related as a gas chamber. Obviously it makes perfect sense for them to want to cut funding to "health care" organizations that actively and deliberately kill people! I should hope we ALL want that. We just differ in what counts as "killing people".

Donna B. said...

A six page unsigned comment is all he published, yet he was law review editor?

Things sure are different at the Ivy League law schools. My daughter wrote in the competition for law review (not editor, just to be on law review) a comment over 3 times that long, which she expanded into a note and it was published. It got her on the short list of editor candidates which were voted on by faculty and law review staff.

Though from a podunk law school, she submitted the article and it won her $5000 and weekend at the Willard in DC from a group of retired SEC people.

Not to mention she worked her tushie off 12 - 15 hours a day as editor. It seems to me that Obama didn't work quite this hard on writing or editing, yet he's the one getting a stab at the presidency?

Why? What are his qualifications that aren't mediocre at best?

And do students get off easier at the more prestigious schools?

blake said...

Donna--

Think we could start a write-in for your daughter?

1jpb said...

Revenant:

"That would be very strange indeed, considering that I support legal abortion."

When I wrote it I knew that my sentence was too open to interpretation, but I was too lazy to change it. My point was that it would be bad if pro-life folks used your type of thinking to try and prevent pregnant women from having prenatal care and health care. I never intended to assume your personal beliefs about abortion. I was describing where pro-life folks could go with your framework.

I agree that this is a dead horse. But, briefly, this is my math:

your comment (essentially) that God will dispense responsibility between the woman and/or doctor
+
the fact that abortion is a legal and inseparable part of women's reproductive health care in America.
=
Pro-life folks limiting prenatal care and health care are causing, as collateral damage, the injury and death of innocent (even by their standards) women and babies. Which is something God would oppose, imho.

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Maria said...

I meet Obama personally he always wear black trousers and their bodyguards.